Lord Blackwell`s speech - 11th June

Full Text of the Debates is available in Hansard from the Parliament website

Lord Blackwell: My Lords, it is a great privilege to follow the noble Lord, Lord Ramsbotham. As he says, the question before the House today is not whether this House approves of referendums and not whether this is a good treaty, but simply whether the Government should be held to their promise to hold a referendum on the constitutional treaty. The Government have erected two lines of defence in order to fend off this possibility.

Their first line of defence is that the treaty is different, and no doubt we will hear that again when the noble Baroness winds up. She will say that the

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treaty is different because it replaces existing treaties, whereas the Lisbon treaty is an amending measure. You do not have to be a lawyer to understand that it is the treaties that result at the end of the process which have to be looked at, not the process by which you get there or what the treaties are called. You have to compare the text of the constitutional treaty with the European treaties that result at the end of the Lisbon process. I will go on to argue that those two treaties have very similar texts, and it is those texts-those we have at the end of the legal process-that will have a legal and constitutional impact on the UK. The texts of both treaties are primarily existing treaties. In both cases, the existing treaties have been maintained in large part-some amendments were added to the constitutional treaty and the whole text reprinted, while in the case of the Lisbon treaty, the amendments were put in and the whole text was reprinted as a consolidated text. The Government have now provided those for us. To pretend that the two texts are different because they were arrived at by different processes makes for an extremely dubious argument. However many times the Government repeat that these two texts are different, as if repetition on its own will give the statement substance, it is clear that that line of defence has no substance at all.

Their second line of defence is to say that if you do insist on comparing the texts, it will be clear that they are different. It is an argument the Government have avoided as far as possible-perhaps for the obvious reason that they know the difficulty they would have if this House engaged in it-and they have refused to this point to provide a comparison of the texts of the two treaties side by side.

In recent weeks, we have had a breakthrough and I am extremely grateful to the Lord President for her correspondence with me on this topic and for putting it in the Library of the House. In that correspondence, the noble Baroness put forward an analysis by Professor Peers which compares the texts of the two treaties. He suggests that there are 35 differences between the text of the constitutional treaty and the consolidated text after the Lisbon amendments-that is 35 differences in treaties containing 400 articles and 328 pages, including the protocols.

I have asserted in previous debates-and the Government have not rebutted it-that there are only two articles in the constitutional treaty which have not been transferred, in whole or in part, to the consolidated treaty text following Lisbon. I believe three articles have been added to the Lisbon text. The vast majority of these 35 differences-some 30 in all-are simply changes to the wording of articles which appear in both texts and the rest of the articles are the same. The issue for the House is to judge whether those differences are significant.

There was another breakthrough earlier this week when the counsel for the Government, defending their case in the High Court against Stuart Wheeler, made their case by saying, "Of these 35 differences, we would like to point to five which are particularly significant". So now we are getting very close to the chase. What were these five? It is important that I should read them out because they are quite interesting.

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The first was extending the opt-out on policing and criminal law. I agree there is an extension there. The second was additional warning powers for national parliaments on subsidiarity. Noble Lords can make their own judgment as to how significant that is. The third was the protocol on the Charter of Fundamental Rights, which a committee of this House has said makes no difference to the legal standing of the charter. The fourth difference was an express statement that national security is the responsibility of nation states. The fifth difference was the flexibility clause, Article 308 as was, that will now not apply to foreign policy. As the noble Lord, Lord Lamont, said earlier, if those are significant differences from the constitution, you wonder what the assurances we were given at the time of the constitution were worth. It is up to the House to decide whether those five significant areas we are now homing in on justify not having a referendum where the constitutional treaty required one.

None of these 35 textual changes affects any fundamental aspects of the constitutional treaty on which a referendum was promised. None of them deals with any of the extensions of competences; none of them deals with the extension of QMV; none of them deals with the collapse of the Third Pillar, other than in relation to the increased ability to opt in or out; and none of them deals with the increased powers of the president, the European Court and the European Parliament. So none of the fundamental aspects of the European constitution which led to the commitment to hold a referendum have been changed and the Government are down to using fine amendments to the drafting to escape from their commitment. It is, of course, a judgment that the House has to make, but I believe that both the first and second lines of defence collapse under scrutiny.

This leads one to conclude that the only reason the Government are making these arguments is to get themselves off the hook. It is therefore up to this House to stand up for the British people and to protect the promise that was made to them by all the main parties, including my own, that they would have a say and that this constitution would not be passed without their consent. The British people have not been asked that question and have not given their consent. I say to those on all sides of the House who support the direction of the European Union and believe that this is a good treaty, that if they allow the Government to get away with a short-term, expedient win on the referendum, it will only be at the expense of building up the scepticism of the British people and their resentment of the arrogance of those in power. They will have only themselves to blame for the scale of the backlash against the European Union and all those to do with it that will inevitably result.

Baroness Symons of Vernham Dean: My Lords, perhaps I can come back to the fundamental case put by the noble Lord, Lord Howell of Guildford, in moving the amendment. As I understand it, his case is based not on whether referendums are good or bad, not on whether this treaty is good or bad and not on whether the Opposition, when they were in Government, had a referendum on the treaty for which they were responsible. His is a very straightforward point: he claims that the Government promised a referendum on this treaty at the time of the last election and that, in all conscience, therefore, the Government should hold the referendum now. That, as I understand it, is his fundamental case.

My fundamental case is very straightforward too: it is that this treaty is not the constitutional treaty upon which a referendum was promised. At the time of the defining of the mandate for the new treaty at the intergovernmental conference, all 27 heads of Government agreed that:

"The constitutional concept, which consisted in repealing all existing Treaties and replacing them with a single text called ‘Constitution', is abandoned".

That was not a statement of Her Majesty's Government; it was a statement by the heads of all the Governments at the IGC.

The old former constitutional treaty would have been legally unprecedented. I have heard no one challenge that point. The abandoned treaty would have legally abolished the European Community and the European

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Union and would have refounded the European Union under a single constitutional order. The EU, in legal terms, would have become a new entity based on a single new founding treaty. The constitutional treaty, had it been passed, would have abolished all the previous treaties that we have discussed in your Lordships' House. The Single European Act, the Maastricht treaty, Nice and Amsterdam would all have been replaced by a single treaty.

Lord Blackwell: My Lords, the noble Baroness says that no one challenges that. I put it to her that all of us who have spoken so far in favour of the referendum have challenged her point. If treaties that contained exactly the same clauses were to be replaced by one constitutional treaty, why is the legal effect any different if the treaty clauses here are exactly the same? It is a nonsensical argument.

Baroness Ashton of Upholland: ...I just want to comment to the noble Lord, Lord Blackwell, on the case that is before the courts at the moment. I have to question the appropriateness, while the case is still before the courts, of raising what was said by government counsel. I am not surprised that the noble Lord was able to get a copy of what the counsel said-I am sure that it is now in the public domain in any event. However, the noble Lord will understand that I am not proposing to comment on it.

Lord Blackwell: My Lords, perhaps I may just let the noble Baroness know that I did check that it was appropriate because the case was adjourned yesterday evening.